Zehtabchi v. Canada ( Minister of Citizenship and Immigration )
IMM-4492-94
MacKay J.
30/1/96
13 pp.
Application for judicial review of Senior Immigration Officer's (SIO) decision determining applicant inadmissible to Canada pursuant to Immigration Act, ss. 19(2)(d), 9(1) and Immigration Regulations, s. 14(1), and issuing conditional departure order pursuant to Immigration Act, s. 28(1)-Applicant, citizen of Iran, entered Canada using Spanish passport and claimed refugee status-Applicant examined and released on condition he report to SIO whenever directed to do so-Failed to attend inquiry, allegedly on ground did not receive notice of hearing-Had changed address but had notified immigration officials-SIO determined applicant's refugee claim should not be processed under Refugee Claimants Designated Class Regulations (designed to clear up backlog of refugee claims) as (1) had remained out of Canada for more than 7 days, for visit to brother in U.S.A., contrary to RCDC Regulations, s. 3(2)(f); (2) failed to appear at inquiry, contrary to RCDC Regulations, s. 3(2)(d)(ii); (3) had not advised immigration officer of whereabouts, contrary to RCDC Regulations, s. 3(2)(h)-Application dismissed-SIO was obligated to assess applicant in light of Regulations-SIO did not err in law in determining applicant had failed to attend inquiry within meaning of RCDC Regulations, s. 3(2)(d)(ii) even though applicant may have had good reason for absence-However, applicant not given fair opportunity to know case against him and to respond to negative inferences raised against him with respect to RCDC Regulations, 3(2)(d)(ii) and (h)-Would be violation of duty of fairness for respondent to rely on fact applicant failed to attend inquiry in order to exclude him from RCDC when notice of inquiry not given-As to information on whereabouts, evidence indicated applicant had indeed provided such information to immigration officials-SIO cannot be wrong in applying RCDC Regulations, s. 3(2)(f) even though at that time, provision found ultra vires in F.C.T.D. decision of Jafari v. Canada (Minister of Employment and Immigration), [1995] 1 F.C. 284, as decision later reversed by Federal Court of Appeal (Jafari v. Canada (Minister of Employment and Immigration), [1995] 2 F.C. 595) and, in such case, provision considered intra vires from beginning-Evidence establishing applicant out of Canada for more than 7 days, with only explanation unaware of Regulations requirement thereon-Therefore, SIO did not err in determining applicant not member of RCDC as excluded under s. 3(2)(f)-SIO bound to issue conditional departure order against applicant in accord with Act, ss. 9, 19, 28 and Immigration Regulations, s. 14(1)-Immigration Act, R.S.C., 1985, c. I-2, ss. 9 (as am. by S.C. 1992, c. 49, s. 4), 19 (as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 3; S.C. 1992, c. 47, s. 77; c. 49, s. 11), 28 (as am. idem, s. 17)-Immigration Regulations, 1978, SOR/78-172, s. 14(1)-Refugee Claimants Designated Class Regulations, SOR/90-40, ss. 3(2)(d)(ii),(f),(h).